I. General Terms and Conditions; deviating terms and conditions
- For the entire business relationship (contracts, deliveries and other services) the following general terms and conditions of sale, delivery and payment (general terms and conditions; hereinafter referred to as GTCs) of the company apply exclusively. WITEC AG (hereinafter referred to as the User), but limited to customers who are entrepreneurs pursuant to § 310 Paragraph1 of the BGB (German Civil Code).
- The general terms and conditions of the User also apply to all future business relations, even if they are not expressly agreed again. General terms and conditions of the customer deviating from these GTCs will not be accepted. Deviations from these GTCs are only effective if this has been agreed or at least confirmed by the User in text form.
II. Offer, conclusion of contract and contract documents
- The offers of the User are always subject to change and revocable at any time, as long as they have not yet been legally accepted.
- Unless expressly agreed otherwise, ownership rights and copyrights to cost estimates, drawings and other offer documents shall remain with the User. The documents may only be made accessible to third parties with the prior consent of the user.
- Minor changes or customary commercial deviations of the services, which do not impair the intended use, are permissible as long as they are reasonable for the customer while taking into account the interests of the User.
- Unless otherwise agreed, the written order confirmation of the User shall be authoritative for the scope of delivery. Collateral agreements and changes require the User’s confirmation in text form.
- Samples will only be delivered against payment.
- The weight can be determined at the User’s discretion either according to DIN or via weighing. For blank cuts, the weight is determined according to the smallest comprehensive square including the kerfs. Grades for sheets and blanks are determined according to the relevant EN/DIN standards or material sheets. References to standards, material sheets or factory test certificates do not constitute declarations of guarantee.
III. Prices, terms of payment, offsetting, right of retention, maturity and default of payment
- The prices stated in the order confirmation shall apply. Unless otherwise agreed, prices are quoted plus works plus statutory value-added tax. Costs of packaging, dispatch and freight insurance taken out at the customer's request shall be borne by the customer. Additional deliveries and services will be charged separately.
- Invoices are payable immediately after the invoice has been issued.
- The issued invoice shall be deemed accepted in all details 14 days after receipt, unless the customer declares otherwise. The User shall draw the customer's attention to the consequences of such a waiver of objection when issuing the invoice.
- Bills of exchange and cheques are considered as payment. Bills of exchange are only accepted after special agreement, discount and expenses are borne by the customer.
- The customer is only entitled to set-off or retention if the counterclaims have been legally established or acknowledged by the User.
- In the event of a default in payment on the part of the customer, interest on arrears shall be charged at the statutory rate. The User is entitled to prove a claim for and invoice a higher interest rate for damages at any time.
- If a considerable deterioration in the customer's financial standing impairs the creditworthiness, or if the User becomes aware of such circumstances, the latter may make all claims against the customer not subject to objections immediately due and payable and assert a right of retention against all claims of the customer, even if they are based on other contracts, or demand contemporaneous performance or the provision of securities.
- Clause 8. shall apply accordingly in the event of non-payment of a cheque given by the customer and in the event of a protest of a bill of exchange.
IV. Delivery, default in delivery, Impossibility
- The delivery data provided by the User are approximate and non-binding. Delivery periods commence with the sending of the order confirmation. Compliance with agreed delivery deadlines presupposes the timely receipt of all documents to be provided by the customer, necessary approvals and releases, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the customer. If this is not the case, the turnaround will be extended correspondingly. This does not apply if the User is responsible for the delay.
- Partial deliveries are permissible to a reasonable extent and their separate invoicing is permitted.
- The delivery period shall be deemed to have been met if the delivery item has left the user's works by the time it expires or readiness for dispatch has been notified.
- Correct and timely self-delivery, i.e. delivery by the customer, is reserved.
- In the event of unforeseen obstacles which are beyond the control of the User and which the User was unable to avert despite reasonable care in the circumstances of the case - regardless of whether they occur with the User or a subcontractor, e.g. delays in the delivery of essential raw materials, strikes, lockouts etc. - the User is entitled to withdraw from the delivery contract in whole or in part or to extend the delivery period depending on the duration of the obstacle. The User shall inform the customer of such circumstances without delay.
- In the event of a delay in delivery, the customer may withdraw from the contract after a reasonable grace period has expired without result; in the event of the User's inability to deliver on the contract, they shall be entitled to this right without a grace period. This also applies if the execution of a part of the delivery becomes impossible in the case of an order and the customer has a justified interest in rejecting the partial delivery. Delay in delivery is equivalent to impossibility if delivery is not made for more than two months.
- Claims for damages (including any consequential damages) are excluded without prejudice to the provision in Section VIII; the same applies to reimbursement of expenses.
- The limitations of liability shall not apply if a fixed-date transaction has been agreed; the same shall apply if the customer can assert that their interest in the performance of the contract has ceased due to the delay for which the User is responsible. In this case, the User's liability is limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence.
V. Shipment, transfer of risk, acceptance of the goods, and place of performance and fulfilment
- The place of performance for the User's contractual obligations is its place of business.
- The goods are dispatched exclusively at the customer's request. Unless otherwise agreed, delivery route and means are left to the User's decision.
- The risk of deterioration of performance and remuneration shall pass to the customer at the time when the goods are handed over to the forwarding agent or other person or institution designated by the User to carry out the shipment, at the latest after leaving the User's warehouse.
- If the goods are ready for dispatch and the dispatch or acceptance is delayed for reasons for which the customer is responsible, the risk shall pass to the customer upon receipt of notification of readiness for dispatch. The costs of further storage shall be borne by the customer.
- Goods ordered on call shall be accepted at the latest one month after notification of readiness for dispatch. Compliance with this obligation is the primary contractual obligation.
- Delivered objects are to be accepted by the customer, even if they show insignificant defects.
VI. Simple and extended retention of title
- The User retains title (reserved goods) to all goods delivered by it until the receipt of all payments arising from the business relationship. The customer is obliged to treat the goods belonging to the User with care.
- Machining and processing of the reserved goods shall be carried out on behalf of the User as manufacturer, without any obligations for the latter arising therefrom. If the customer combines, mixes, blends or processes the reserved goods with other goods or transforms them, the User acquires co-ownership of the new item in the ratio of the value of the reserved goods to the other combined, mixed, blended or processed objects. The customer shall keep co-ownership for the User. If the connection is made in such a way that the object of the customer or a third party is to be regarded as the main object, it is agreed that the customer transfers proportional co-ownership to the User. The co-ownership share to be transferred is determined based on the value of the combined reserved goods in proportion to the value of the main item.
- The customer may only sell the reserved goods owned by the User in the regular course of business. Any other dispositions, in particular pledging and assignment as security of the reserved goods, are not permitted. By way of security, the customer hereby assigns to the User any claims (including VAT) arising from the resale or from any other legal grounds (insurance, tort) in respect of the reserved goods. The latter accepts the assignment. The customer remains entitled to collect the assigned claims in the ordinary course of business.
- If the value of the security interests to which the User is entitled exceeds the amount of all secured claims by more than 20%, the User shall be obliged to release or retransfer the excess securities at the customer's request.
- The authorization of the customer to sell the reserved goods as well as to process, transform, mix, combine and collect the assigned claims expires in the event of non-compliance with the terms of payment, in the event of unauthorized dispositions, and also if insolvency proceedings have been filed or applied for by the customer. In this case the User is entitled to take immediate possession of the reserved goods. The withdrawal or assertion of the retention of title or the seizure of the reserved goods by the User shall not constitute a withdrawal from the contract, unless the User expressly declares this.
- In the event of access by third parties to the reserved goods, the customer shall point out the User’s ownership and inform the latter immediately.
VII. Notice of defects, warranty, liability, limitation of actions
- The customer must carefully examine the User’s deliveries for defects, shortfalls, etc. on the basis of purchase contracts or contracts for work and materials in accordance with the statutory provisions, without delay, and, if necessary, give notice of defects. If a defect that already existed at the time of delivery only becomes apparent later (hidden defect), it must also be reported immediately after its discovery.
- All those parts which prove to be defective as a result of a circumstance prior to the transfer of risk shall be repaired or replaced free of charge at the discretion of the User, provided that the defects are not insignificant. Replaced parts become the property of the user.
- The customer has to give the User adequate time and opportunity for the necessary rectification or replacement delivery; otherwise the User is released from liability for the resulting consequences.
- If the repair fails or is unreasonable for the User, the customer has the right to withdraw from the contract or to reduce the contract price. A right of choice exercised in this respect by the customer between withdrawal and reduction is binding for the customer.
- In the event of a justified notice of defect, the customer's right of retention is only permissible in an appropriate and reasonable relationship between the defect and the contract price.
- No liability is assumed for natural wear and tear or damage caused after the transfer of risk as a result of incorrect or negligent handling, excessive strain, etc. If the customer or a third party carries out improper repairs, the User is not liable for the resulting consequences. The same applies to changes made to the delivery item without the prior consent of the User.
- Unless otherwise provided in Section VIII. of these General Terms and Conditions, further claims of the customer are excluded on whatever legal grounds (in particular claims from violation of primary and secondary obligations, tort, culpa in contrahendo and other tortious liability); this also applies to damage outside the object of sale and claims for compensation of lost profit.
- The User is not obliged and from a technical point of view not able to finally check the correctness and completeness of the data provided for the construction or production of customers, as far as there are no obvious errors. If, therefore, data provided by the customer required for design or production are incorrect or incomplete with the result that the work cannot be carried out or is defective, the customer is not entitled to any claims for liability for material defects in this respect. In the event that the trade union is unfeasible, the User is entitled to a proportionate remuneration in accordance with the work they have done.
- All claims of the customer, for whatever legal reason are bound by a statute of limitations of 12 months. The respective statutory periods shall apply to claims for damages due to damage which has not occurred to the delivery item itself. These shall also apply to defects in a building or to delivery items that have been used for a building in accordance with their normal use and which have caused its defectiveness.
- Claims from the manufacturer’s right of recourse remain unaffected.
VIII. Compensation for damages and liability
- Claims for damages of the customer, for whatever legal reason, in particular due to breaches of ancillary obligations or due to tortious acts, are excluded, provided that in IV. Paragraph 8 and in the following nothing else is determined.
- The exclusion of liability does not apply to damages from injury to life, body or health as well as to other damages, insofar as they were caused at least due to the gross negligence of the User or their legal representatives or their vicarious agents. The exclusion of liability according to Paragraph 1 shall also not apply if liability is based on the Product Liability Act, a given assurance or guarantee or on the breach of essential contractual obligations. Compensation for the breach of essential contractual obligations is, however, limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence.
- In the event of a claim for reimbursement of expenses, the above shall apply accordingly.
IX. Place of jurisdiction and applicable law
- These GTCs and the entire legal relationship between the User and the customer shall be governed by German law. The UN sales law (Vienna UN Convention of 11/04/1980) does not apply. The German language is the language of negotiations and contracts.
- The place of performance and jurisdiction for all claims and legal disputes arising from the contractual relationship, including proceedings relating to bills of exchange and documents, shall be the registered office of the User.
- Should individual provisions or parts of the contract be or become invalid in whole or in part, this shall not affect the validity of the other provisions or the validity of the contract.